Articles Tagged with New Jersey sexual harassment

In a demonstration of support for and solidarity with New Jersey employees that have experienced sexual harassment and sexual assault in the workplace, Governor Murphy signed Senate Bill 2986, nicknamed the “Panic Button Bill,” on June 11th, 2019. This bill was introduced to the New Jersey Senate in September of 2018 and, with Governor Murphy’s signature, will take effect in January of 2020. Governor Murphy claims that, with its passage, New Jersey becomes the first state nationwide to enact legislation of its kind.  The  passing of the legislation is another victory for employees, and particularly victims of sexual harassment in the #MeToo movement.

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In an effort to recognize the prevalence of sexual misconduct in specific areas of employment, the New Jersey Senate has targeted the hospitality industry with regulations intended to protect hotel employees from facing such unlawful behavior. The bill states, “[d]ue to the unique nature of hotel work, hotel employees are particularly vulnerable when working alone in hotel guest rooms…this solitary work places them at risk of assault, including sexual assault, and sexual harassment.” This statement was proven true by a horrific case of sexual assault that occurred in 2018, when a 51-year-old house keeper at Billy’s Casino in Atlantic City was forced into a hotel room and sexually assaulted by a guest. This criminal act sparked a widespread demand for safer working conditions for hotel employees.

New Jersey employees are protected from sexual harassment and sexual misconduct in the workplace by the New Jersey Law Against Discrimination (LAD)The New Jersey Law Against Discrimination prohibits discrimination on the basis of sex, which includes behavior such as inappropriate touching, unwelcome sexual advances, and retaliation for opposing sexual harassment conduct or participating in an investigation into such conduct. These are just some of the many different forms sexual harassment and assault can take. The New Jersey Law Against Discrimination requires that employers take the utmost caution in assuring that their employees are not vulnerable to experiencing this type of unlawful behavior. This is the basis for the Panic Button Bill that Governor Murphy signed into law.

It is not uncommon when a sexual harassment claim is filed for controversy to arise regarding who exactly is liable for the harassment. In 1993, the New Jersey Supreme Court held in the case ‘Lehmann v. Toys ‘R’ Us’ an employer may be liable if the sexual harasser was acting within the scope of his or her employment or if the employer was negligent for allowing the existence of a hostile work environment.  After the Lehman decision, questions remained concerning how victims of sexual harassment could prove that their employer was negligent and therefore liable for the sexual harassing conduct of one of its employees. In a 2002 case Maria Gaines v. Joseph Bellino, the New Jersey Supreme Court provided further clarification concerning an employer’s liability for workplace sexual harassment and established a framework for courts to determine whether an employer has an effective anti-harassment policy.

In Gaines v. Bellino, the plaintiff Maria Gaines was an employee of Hudson County Correctional Facility when she began to experience sexually harassing behavior from her supervisor, Captain Bellino. In 1990, Mr. Bellino forcibly kissed Ms. Gaines against her will. Ms. Gaines objected to the assault, and immediately reported it to several coworkers and some other higher level officials of the facility. She was encouraged to report the behavior, but expressed fear of retaliation as well as of Bellino himself. This fear was shared by multiple coworkers, and Gaines was further advised that the facility’s supervisors would most likely not believe her reports of the harassment. Because of this, Gaines chose not to submit a formal report regarding the behavior. Over the next few years, Gaines was subject to additional harassing incidents. On one occasion, Bellino brought up the initial assault in front of a superior officer, adding that he could even rape Gaines and no one would believe her. In early 1995, Ms. Gaines reported the conduct to the warden of the facility. No investigation was conducted until the middle of 1996, and no action was taken until March of 1997, when Bellino was suspended for 30 days.

Ms. Gaines filed a legal complaint against Bellino and the Hudson County Correctional Facility regarding the harassment in 1998. The trial court granted summary judgment in favor of the defendants noting that the Hudson County Correctional facility maintained an anti-harassment policy and mechanisms for reporting harassment, proven by posters that had been exhibited in the facility as well as a section of the employee handbook that dictated the reporting process. Ms. Gaines appealed this decision, as she argued that the anti-harassment policies were ineffective and not implemented correctly. The question that the New Jersey Supreme Court was charged with answering was whether the Hudson County Correctional Facility’s anti-harassment policy in place were enough to protect an employer from being held accountable for sexual harassment?

In the midst of a national discussion regarding sexual harassment in the workplace, the laws prohibiting such egregious behavior as well as the methods of reporting and investigating related complaints have come under scrutiny. Many businesses across the country are reviewing their anti-harassment policies to become legally compliant and limit their liability when sexual harassment occurs at their workplace. In New Jersey, a claim of sexual harassment was first recognized in 1993, in the landmark New Jersey Supreme Court case Lehmann v. Toys ‘R’ Us. Commonly referred to as Lehman by New Jersey employment lawyer and judges, this case set the standard for stating a cause of action for a claim of sexual harassment that created a hostile work environment.

Sexual harassment cases are typically divided into two categories: quid pro quo harassment or harassment that generates a hostile work environment. Quid pro quo sexual harassment occurs when an employer or supervisor attempts to make an employee submit to sexual demands as a condition of his or her employment. Sexual harassment that creates a hostile work environment was ill defined prior to 1993, which made Lehmann v. Toys ‘R’ Us the landmark case for sexual harassment cases in New Jersey.

In 1986, Ms. Theresa Lehmann’s employment with Toys ‘R’ Us was drastically altered upon the hiring of Don Baylous as the Director of Purchasing Administration. Under his supervision, Ms. Lehmann and her female coworkers began to experience pervasive sexual harassment that varied from sexualized comments about Ms. Lehmann’s breasts to an instance where Mr. Baylous physically pulled Ms. Lehmann’s shirt over her head to expose her breasts. Ms. Lehmann attempted to report the conduct to several managers, but very little was done to remedy the situation. Instead of addressing Mr. Baylous’s behavior, Ms. Lehmann was offered a transfer to a different department. She rejected this, and later resigned as a result of the harassing conduct and the retaliation she experienced from reporting it. In response to this inadequate managerial reaction, Ms. Lehmann submitted a formal legal complaint of sexual harassment that was initially heard by a trial court. The trial court dismissed all causes of action except battery. Ms. Lehmann appealed, and the appellate court reversed the trial court’s dismissal of her claims of a hostile work environment brought on by sexual harassment, which they remanded for further fact finding. The case eventually found its way to the New Jersey Supreme Court, where it developed into a monumental case in New Jersey court history.

The #MeToo movement has brought long overdue attention to the systemic societal problems concerning workplace sexual harassment throughout the United States and the State of New Jersey.  Most sexual harassment claims by a New Jersey employee are brought under the New Jersey Law Against Discrimination, a state statute.  While a New Jersey employee or resident may also bring a claim of sexual harassment under the federal statute, Title VII, most New Jersey employment lawyers counsel clients to proceed with their sexual harassment claim under the New Jersey Law Against Discrimination (LAD). This blog outlines the various types of workplace sexual harassment claims brought under the New Jersey Law Against Discrimination.

In enacting New Jersey’s anti-discrimination law, the state legislature expressly declared “discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a democratic State.”  N.J.S.A.10:5-3.  New Jersey courts interpreting the LAD have long and consistently recognized that employers are best situated to avoid or eliminate impermissible, pernicious employment practices relating to sexual harassment, to implement corrective measures to stop future sexual harassment, and to adopt and enforce employment policies that will serve to achieve the salutary purposes of the legislative mandate to end workplace discrimination.  New Jersey courts consistently remind us that the overarching goal of the New Jersey Law Against Discrimination is nothing less than the eradication of the cancer of discrimination.

There are different claims of sexual harassment that are actionable against an employer.  These include claims of hostile work environment, quid pro quo sexual harassment, and sexual harassment retaliation.